Sunil Ambwani, J. - (1.) THE applicant -bank is a unsecured creditor of the company, M/s. Sapna Scooters India P. Ltd., which was wound up by this Court on March 31, 1994. After the sale of the assets, the official liquidator with the permission of the court invited the claims, vide advertisement in the news papers annexed vide O.L. Report No. 98 of 1997. He did not receive any claim, and thus after seeking permission of the court vide O.L. Report No. 35 of 1998, the official deposited the entire amount unclaimed and undistributed amount of Rs. 2,92,230 under Section 555(1) of the Companies Act, 1956, in the company's liquidation account of the Central Government.
(2.) THE charge of the applicant -bank was not registered with the Registrar of Companies vide certificate dated June 28, 1994, for payment of unsecured dues vide mortgage deed for Rs. 8,72,455.08. The applicant -bank has relied upon the compromise decree passed by Additional District Judge, court No. 11, Aligarh, in O.S. No. 457 of 1989, in which a compromise was struck between the State Bank of India and Sapna Scooters Industries P. Ltd. (in liquidation), to realise the amount of Rs. 2,92,230 from the official liquidator, after auction sale of the assets of the company (in liquidation). After the company is wound up the assets come in possession of the court and the company is represented by the liquidator. There is no averment in the application that permission of the court was obtained under Section 446 of the Companies Act, 1956, to continue the suit but once the company was wound up on March 31, 1994, it was necessary for the respondents to have impleaded the official liquidator to represent the interest of the company (in liquidation). The decree dated January 10, 2003, passed by Additional District and Sessions Judge, Court No. 11, Aligarh, and the compromise dated April 7, 2001, which is part of the decree, does not show the fact of winding up was brought on record and the official liquidator was impleaded as party representing the company Sapna Scooters India P. Ltd. (in Liquidation).
(3.) THE decree, as such, is not binding upon the company (in liquidation). After the company is wound up under the Companies Act, 1956, the assets of the company came into the possession of the court and that the official liquidator represents the interest of the company. Since the company was wound up, the permission to pursue the suit was necessary and incumbent upon the plaintiff -bank. The bank did not implead the official liquidator to represent the company. The compromise shows that it was made between the State Bank of India and defendant Nos. 2 and 3, namely, Sri Babu Lai Sharma and Sri Prem Shanker Sharma, who could not have representing the company and compromised the mortgage suit.;